Griffin v. Derby , 5 Me. 476 ( 1829 )

WestoN J.

delivered the opinion of the Court at the ensuing term in Cumberland.

. This is an action of assumpsit brought upon an account annexed, to recover the value of a yoke of oxen. It is defended under the statute of frauds ; upon the ground that it is founded upon a parol promise to pay the debt of another. If the promise is of this character, the action cannot be sustained. This branch of the statute has been ably analysed by Kent, C. J. in Leonard v. Vredenburgh, 8 John. 29, and he there adverts to promises to pay the debt of another, founded upon a new and independent consideration, moving between the newly contracting parties, wrhich are regarded as original 'in their character, and therefore not within .the statute.

By the express agreement between the plaintiff and the younger Derby, the oxen were to continue the property of the plaintiff, until the note was paid ; and if not paid by the time stipulated, he was again to take them into his own possession. Whether he could do this against an attaching creditor, or a bona fide purchaser from young Derby, for a valuable consideration without notice, is not now a question before us. The plaintiff might approve and adopt the successive exchanges made by young Derby, and the oxen received in exchange wmuld thus become his property. That he did so, is to be inferred from the fact, that it was the oxen last received in exchange, which were in the defendant’s possession, which the plaintiff proposed to take away, and not those which originally belonged to him. If this case is to be considered as belonging to either of the classes stated by Chief Justice Kent, it is to that which, arising from a new and distinct consideration, between the newly contracting parties, is not within the statute. But upon a fair consideration of the facts in the case, the engagement of the deféndant cannot, in any point of view, be regarded as a promise to pay the debt of another. The note not being paid by the time appointed, the plaintiff claimed to receive back the oxen. If he had done so, he would have had no debt against young Derby. Had he paid the note the oxen were to fee his 3 if not paid, and they were reclaimed, there could be no pre^ lenco that the note remained due ; and as between the original contracting parties, they were virtually received again. The note not being paid at maturity, and young Derby having absconded, the plaintiff demanded the oxen as lie had a right to do, by which the sale originally contemplated, was waived and abandoned. Ho thereupon made a new bargain with the defendant ; by which the latter was permitted to retain the oxen, upon his engaging to pay for them the same sum his son was to have paid. There was in effect a salo of the oxen from the plaintiff to the defendant instead of young Derby, who had never become the purchaser; the intended sale to him having been vacated by the plaintiff, in pursuance of their original agreement. The defendant, having received the oxen under a new contract with the plaintiff, and having promised to pay for them, is called upon to pay his own debt, and not that ot his son ; and has therefore no defence under the statute of frauds.

Judgment on the verdict.